1990 PLP 69 (PLC)

The applicant filed his written arguments while the Advocate for Respondent Mr. S.M. Yakoob argued his case at length personally. In the light of above evidence on record following would be points for determination:‑‑ (1) Whether the applicant is permanently disabled at 50% due to his accident in the company of Respondent? If so, its effect. (2) Whether the applicant has any legal right guaranteed or secured under any law, award or settlement? (3) Whether the termination of services of applicant by Respondent is illegal and unjustified? (4) What should the order be? My findings on above points are as under: ‑‑ POINT NO.1 In affirmative POINT N0.2 In affirmative POINT N0.3 In Negative POINT N0.4 As ordered below. So far as the above point No. 1 is concerned it remains mostly an admitted position. The above admitted position is not only supported by any oral evidence but it is supported by documentary evidence. From the perusal of evidence and documents produced by both the parties I find that above point of disability of applicant at 50% stands not only proved but is admitted position by the applicant. The applicant before termination of his services was hismelf crying and making applications to the various authorities to admit that he was incapacitated at 50% and was unfit to do heavy duty. The above stand of applicant can be proved from, application No. 1 dated 29‑7‑1986 made by applicant to respondent, N‑2 a certificate issued by Dr. Said Ahmed ‑ Lt.‑Col. produced by applicant before Respondent alongwith application N‑

1. There is also a certificate issued by Dr. Aftab Ahmed Oureshi on 31‑8‑1986 certifying 50% disability of applicant. The last and final medical certificate is issued by Medical Board, which was constituted on the application of applicant made to the Minister for Labour Government of Sindh Annexure K‑

2. The above Medical Board certified the applicant as fifty per cent partial disabled. He is certified to be unable to perform his normal duty with his right hand. From the above medical certificates on record the 50% disability of applicant is established. The applicant himself in pursuance of such certificates of his disability was claiming compensation from Respondent as is evident from his application Annexure N‑

1. This shows that the applicant himself was admitting to the extent of 50% his disability for the purpose of knocking out money from Respondent. It is also admittedly on the record from cross of applicant that during duty period he was unable to do heavy job and he was thus unable to perform heavy duty. Under these circumstances the Respondent terminated the services of applicant with effect from 24‑9‑1986 i.e. after 15 month's after accident of applicant. Thus it shows that the applicant even after period of 15 months was unable to perform duties. The Respondent a Commercial Company could hardly tolerate the existence of applicant to be in his service and declared his termination of service order offering him to pay him one months notice pay and dues as per law. Thereafter when the applicant's services were terminated by Respondent, he changed his attitude of his disability and started claiming himself to be fit to perform duty. In support of his above sudden change of attitude he managed to secure a fitness certificate from one Dr. Shafiq‑ur‑Rehman who on 29‑9‑1987 i.e. after one year after termination of services of applicant issued such certificate in favour of applicant without giving further reference of X‑rays report etc. The applicant in spite of above certificate, did not produce it in his evidence. He also did not examine the doctor in favour of his side. Thus it all appears that this has been subsequent development of applicant just to defend his termination of services in Court. But since the point of disability to the extent of 50% is already established in an admitted position nothing could be done for applicant at such late stage of his change in his stand. I therefore do not find any force in the subsequent stand of applicant to believe him to be fit to perform duties of Respondent. The further contention of applicant that he was made prey of termination of his services as a result of his being active member of subsequent union in which applicant claims to be Propaganda Secretary is not proved by him in evidence through any oral or documentary proof. The above contention is on the other hand not admitted by Respondent who claims that there was no such another union and the union CBA in the company of Respondent is working for last many years with harmony with administration and after every two years there has been agreements between existing C.BA. Union and management. Thus the above stand of applicant stands not proved. The point No. 1 in view of above discussed reasons is answered accordingly in positive. REASONS FOR MY FINDING ON POINT NO .2 So far as legal right guaranteed and secured of applicant is concerned it is not denied by Respondent even in his reply statement. The Respondent in the last para. of termination order of applicant has clearly mentioned that the applicant would be paid one month's notice pay and other dues as per law which may be collected by applicant. The Respondent has further added in above termination order that the claim of applicant to the extent of 50% permanent disablement would be dealt with separately in accordance with law. Thus the above point stands admitted and as such it is held accordingly in affirmative. REASONS FOR MY FINDING ON POINT NO .3 As regards point No. 3 the burden of proof was on applicant to prove as to how and under what circumstances the termination order of services of applicant was illegal and unjustified. The applicant led the evidence of Hafiz Khalid to that effect. The contention of applicant that at the time of termination of his services he was in care and under treatment of dispensary of the Social Security Institution and as such the termination of his services was illegal and unjustified as held in 1977 PLC 109 in case Mohammad Munir Butt v. Crescent Jute Products Ltd. Jaranwala Appeal No. 33 of 1976 decided on 10‑3‑1976 % where on page 110 at place (b) S.72 of West Pakistan Employees Social Security Ordinance (X of 1965) is discussed and defined. "S.72‑‑Section bars employer to dismiss, discharge or otherwise punish employees during period of medical care of Social Security Institution Medical certificate rejected on ground of its having been sent two days late‑Management, held must have ordinarily accepted medical certificate as correct unless definitely proved to be bogus but on any account no punishment could be awarded to worker in view of statutory provisions contained in S.72". To prove above contention the applicant examined Hafiz Khalid Farooq who in his Court evidence has deposed that applicant remained in the treatment as per last entry in the book till 21‑10‑1986. The witness in his cross has admitted that at page 3 is the last Form B of applicant which is dated 28‑8‑1986. The witness has further admitted that last entry in Medical Book of applicant maintained by Social Security Institution Ex. AW/1 is dated 2‑10‑1986 and it is in respect of Amna w/o Mohammad Ayoob applicant. From perusal of above book it appears that last entry in above medical record in respect of applicant is 28‑8‑1986. The subsequent entries as claimed by applicant appear to be of his family members and no entry is shown regarding applicant in the book as admittedly no form B2 is available in the book as admitted by witness. Thus the contention of applicant that he was under care and treatment of Social Security Institution does not stand proved. Thus the contention of applicant that he was under care and treatment of Social Security Hospital is not established and as such contention bears no force. In view of above reasons the point No. 3 is answered in negative accordingly. The above point is to be decided in view of my findings on aforesaid points and as points Nos. 1 an 2 which are vital points for decision of above grievance application have been decided against applicant and it has been held that the applicant is disabled 50% and unfit to do the job with his right hand and that his termination from service was not illegal and unjustified hence the above point would naturally go against applicant. I therefore in view of above reasons find no force in the above grievance petition of applicant and as such dismiss it. The applicant is at liberty to file application for compensation before proper Court for recovery of his compensation. He is also at liberty to collect his dues from Respondent as offered by Respondent in the termination order A.E./1474/Lb. S Petition dismissed.